Ward v. Ward.
Decision Date | 31 May 2011 |
Docket Number | No. S11A0437.,S11A0437. |
Citation | 710 S.E.2d 555,289 Ga. 250 |
Parties | WARDv.WARD. |
Court | Georgia Supreme Court |
OPINION TEXT STARTS HERE
Miller & Brown, John Broadhurst Miller, Fayetteville, for appellant.M. Barbara Gayle Moon, McDough, for appellee.NAHMIAS, Justice.
Appellant Dorene Ward and appellee Richard Ward were divorced in March 2007. Richard was awarded primary physical custody of the parties' two young children. Dorene was awarded substantial visitation and was required to pay child support. In February 2008, Dorene filed this action, seeking to hold Richard in contempt of the final divorce decree, to obtain sole custody of the children, and to obtain child support in the event child custody was given to her. Richard counterclaimed for an increase in child support and for attorney fees. After a hearing, the trial court ruled that Richard was not in contempt, declined to modify custody, increased Dorene's monthly child support payment, amended the visitation provision of the final decree to provide that Dorene “shall not have any overnight male guests while the minor children are present,” and awarded Richard $10,000 in attorney fees.
Dorene filed an application to appeal, which this Court automatically granted under OCGA § 5–6–35(j) because she had the right to a direct appeal under OCGA § 5–6–34(a)(11) based on the child custody issue she raised. On appeal, Dorene contends that the trial court erred by adding the visitation provision and in awarding attorney fees.1
1. Dorene contends that the amended visitation provision is overbroad, because on its face it prohibits her from having her father, a brother, a new spouse, or even the children's father spend the night at her house while the minor children are present. We agree. A trial court has discretion to place restrictions on custodial parents' behavior that will harm their children. See Arnold v. Arnold, 275 Ga. 354, 354, 566 S.E.2d 679 (2002) ( ); Brandenburg v. Brandenburg, 274 Ga. 183, 184, 551 S.E.2d 721 (2001) ( ). Here, however, even assuming that the evidence was sufficient to find that the children would be adversely affected if any boyfriends of Dorene spent the night with her, the restriction against “ any overnight male guests” would prohibit Dorene from having visitors with whom she has no romantic relationship and for whom the record does not support a finding of any harmful effect on her children. Accordingly, the trial court abused its discretion in adopting this provision. See Arnold, 275 Ga. at 354, 566 S.E.2d 679; Brandenburg, 274 Ga. at 184, 551 S.E.2d 721.
2. We also agree with Dorene that the trial court erred in awarding attorney fees. “Generally, an award of attorney fees is not available in Georgia unless authorized by statute or contract.” Moon v. Moon, 277 Ga. 375, 378, 589 S.E.2d 76 (2003). Here, because the case involved an action for contempt of a divorce decree and modification of child support and was not purely an action for modification of custody, the award could have been based on OCGA § 19–6–2. See Roberts v. Tharp, 286 Ga. 579, 581, 690 S.E.2d 404 (2010); McDonogh v. O'Connor, 260 Ga. 849, 850, 400 S.E.2d 310 (1991). OCGA § 19–6–2 “authorizes a trial court in a divorce action to exercise its sound discretion and, after considering the financial circumstances of the parties, to award attorney fees as necessary to ensure the effective representation of both parties.” Simmons v. Simmons, 288 Ga. 670, 673, 706 S.E.2d 456 (2011). The award of attorney fees also could have been based on OCGA § 9–15–14, which authorizes attorney fees in any civil action against a party who asserts frivolous claims or defenses. Where a review of the record does not reveal whether the trial court based the award on § 19–6–2 or § 9–15–14, “the issue of attorney fees must be remanded for an explanation of the statutory basis for the award and any findings necessary to support it.” Cason v. Cason, 281 Ga. 296, 300, 637 S.E.2d 716 (2006).
Having reviewed the record in this case, we conclude that the award of attorney fees must be vacated and remanded. The trial court did not...
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...fees is not available in Georgia unless authorized by statute or contract." (Citation and punctuation omitted.) Ward v. Ward , 289 Ga. 250, 251 (2), 710 S.E.2d 555 (2011). We thus look to the various attorney fees provisions on which Meadows relied.(a) OCGA § 19-6-2 . Under OCGA § 19-6-2 (a......
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